The Royal College of Nursing & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin) (10 November 2010) – Read judgment

The High Court has ruled that a scheme which prohibits people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law.

The system of automatically banning those convicted for or who admit certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.

The Safeguarding Vulnerable Groups Act 2006 was introduced following the findings of the 2004 Bichard Inquiry into the Soham Murders. The Act introduced a ‘Vetting and Barring” scheme for people working with children, whereby a new Independent Safeguarding Authority (‘ISA’) must maintain lists of people who are barred from certain kinds of work with children and adults. That list includes those who are convicted of, or admit to, certain specified criminal offences, including various sexual offences, and those involving violence or the mistreatment of children. Once barred, the restrictions on work last from a minimum of 1 to a maximum of 10 years.

Four of the claimants were nurses. Two had accepted police cautions for leaving their children at home unsupervised, one was convicted of giving a child an unauthorised kiss and the other was subject to an investigation into her being drunk at work. Because of the way the Act works, the first three had all been placed automatically on the barred list after accepting their cautions or being convicted. They were eventually taken off the lists after challenging the decisions, but only after many months of being unable to work in their chosen field.

b) The scheme as operated does not allow individuals who are given a right to make representations to do so orally rather than solely in writing, contrary to Article 6 ECHR.

c) The scheme does not give individuals placed on a barred list the opportunity of a full merits review on appeal contrary to Article 6 ECHR.

d) The minimum barring period of 10 years for a person aged 25 or over is disproportionate and in breach of Article 8 ECHR.

Ultimately, only ground (a) succeeded, but this was enough to render the automatic barring mechanism in breach of the European Convention on Human Rights.

The cornerstone of the Claimants’ case was the decision of the House of Lords (now the Supreme Court) in R (Wright) v Secretary of State for Health & Another, in which it ruled that the procedure under the Care Standards Act 2000 of allowing the provision listing of care workers onto a similar ‘barred from work’ list as to the present case without their being able to make representations ran contrary to article 6 and article 8 rights.

In that case, Baroness Hale said that although that scheme “appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal“, nonetheless

The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment. [28]

The crucial point in Wright was that a care worker could be banned from working in their chosen profession for many months without having had the chance to make representations. Article 6 of the European Convention provides that when determining a person’s civil rights, “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law“. This was clearly not the outcome of the scheme under the Care Standards Act.

The claimants in the current case faced the difficulty that the newer version of the barring list only automatically listed individuals if they had been convicted or had admitted to an offence, which on the face of it sounds fair. The older scheme placed people on the list if they were merely suspected of an offence, which the House of Lords rightly considered to be too harsh, despite the importance of protecting children. Moreover, Wright dealt with a scheme which has now been completely replaced. Baroness Hale made clear that “[w]hile we have been informed of its existence, we have not heard argument on whether or not that scheme is compatible with the Convention rights as the question does not arise on these appeals”. As such, “Nothing which I have said in this opinion is intended to cast any light upon that question.”

However, whilst accepting the obvious differences between the cases, Mr Justice Wyn Williams had no problem finding the reasoning of the House of Lords of significant relevance. He said that the consequences “are as real for the persons placed on the barred lists under the 2006 Act as they were for the persons provisionally listed under the earlier scheme.” [59]

The Secretary of State argued that the potential consequences of the automatic barring system were justified by the seriousness of the relevant offences, and the potentially disastrous effects that allowing perpetrators to work with children would have. The judge rejected this reasoning for two main reasons.

First, there was a significant delay between the offences being reported and the claimants’ names appearing on the bared lists [63], which suggested the scheme was not as fast or effective as it may have been painted by the Secretary of State.

Second, and more importantly, the claimants, who were convicted of relatively minor offences, were the precisely category of people who would suffer most from the automatic barring measures:

… it would be wrong to proceed on the basis that the cases of the Second, Third and Fourth Claimants are in some way unrepresentative. I have no reason to doubt that they are typical examples of the type of cases referred to the Interested Party in respected of specified offences at the less serious end of the spectrum. Yet it seems to me that automatic barring is bound to have the greatest adverse effect upon those cautioned or convicted for offences at the less serious end of the scale, however efficiently their cases are considered. It is persons convicted or cautioned for comparatively minor specified offences that suffer most from automatic barring and have most to gain if they are permitted to make representations about whether they should be barred in advance of barring taking place. [64]

As to the need for a holding measure, the judge considered that the policy was simply too big a hammer to crack this particular nut:

The need for a holding measure in respect of a person convicted of a serious specified offence will be a rarity. Persons convicted of such serious offences will usually be sentenced to a term of imprisonment although I acknowledge the possibility that a minority of such persons might be made subject to some form of community punishment. This minority category, however, will be well known to the police and the probation services. The reality is that in most cases where an individual has been convicted of a serious specified offence the risk of harm to children or vulnerable adults thereafter will be non-existent (because the person is in prison) or small (because the person is subject to supervision within the community). It is difficult to see how the legitimate aim of safeguarding children and vulnerable adults from such persons would be compromised by permitting those persons to make representations about whether they should be included on barred lists before that step is taken.

The judge went on to reject the claimants’ three other grounds (see paras 79 to 128) and ultimately made a declaration that the Safeguarding Vulnerable Groups Act 2006 was incompatible with the European Convention on Human Rights. While technically the Secretary of State need not follow the decision, in practice it is rare for declarations such as this to be ignored. It is not clear yet whether the decision will be appealed.

Comment

The Soham murders were awful and shocking, and the public outrage which followed justifiably focussed on the fact that Ian Huntley, Jessica Chapman and Holly Wells’ killer, had worked as a caretaker at the girls’ school, and did so despite various authorities being aware of allegations against him of indecent assault and underage sex. He had even been charged by the police for rape.

The recommendations of the ensuing Bichard Inquiry were accepted and the law was changed to make it harder for people who had been convicted of relevant offences to work with children or vulnerable adults. The inquiry found a gap in the child protection system and the government duly plugged it.

But that was not the end of the story, nor should it have been. The European Convention is concerned not just with protecting the rights of individuals but also with balancing their rights against those of others. Baroness Hale in Wright identified the great difficulty of achieving this balance in child protection cases:

How is a proper balance to be struck between the need to protect the vulnerable adults, who may be at risk from a care worker who has been referred to the Secretary of State, and the need to protect the care worker from suffering irreversible damage to her civil rights, as a result of allegations which later turn out to be unfounded, even frivolous or malicious, or at the very least blown up out of all proportion?

A key principle of human rights law is that state policy should be proportionate, that is the means must be justified by the end sought. In this case, the judge found that although the end was of great importance, the means were draconian. Automatic barring from work without a right to make representations “is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard“.

This case highlights not only the importance of protecting basic fair trial rights, but also the tendency to impose draconian laws following emotive public scandals. That said, it is often difficult to predict the collateral damage which will be caused by a policy before it is put into practice. To take another example, the Victoria Climbié Public Inquiry recommended the setting up of a national children’s database, which became ContactPoint. This cost £224m and, following campaigning by civil liberties groups who claimed it placed too much information about children at the hands of too many people, has now been unceremoniously switched off. A similar fate may one day befall the so-called Sarah’s Law, resulting from the death of Sarah Payne, which allows people to ask police if someone with regular access to their children has a record of child sex offences.

There are no easy answers to the dilemmas posed by calibrating child protection policy, and to that end the new government has commissioned an urgent review into the child protection system. It would do well to examine Mr Wyn Williams’ decision, as well as that of the House of Lords in Wright, in order to gain an insight into the sensitive and finely posed balancing of rights which must form part of any new policies which aim to protect children

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